The gross negligence of some Catholic bishops in failing to protect the young from predator clergy has jeopardized the long-held tradition of separation of church and state in the United States. A recent settlement with the Diocese of Manchester, New Hampshire is a case in point. The state agreed to drop criminal charges against the Church, in return for which the diocese must submit to an annual audit for 5 years of its personnel records by the attorney general’s office to make sure it is complying with the guidelines established to protect children from abusive priests.

New Hampshire intended to bring criminal negligence charges against the diocese under misdemeanor provisions of its child endangerment law. In accepting the agreement, the diocese acknowledged the collective guilt of the institution in its “duty of care” and de facto admitted its criminal negligence. This arrangement has effectively made the state an overseer of the church, and the once jealously guarded principle of self-governance accorded to hierarchically structured churches has been compromised.

Although statutes differ from state to state, an ambitious district attorney will now be encouraged to pursue any legal avenue to establish even tangentially evidence of intent to cover up crimes (Note: the “duty of care” statute in New Hampshire had never before been applied to an institution). Because of public pressure, impaneled grand juries may very well find cause for prosecution. Also, politicians anxious for the votes of their angry constituents – and perhaps even one who is an enemy of religion – may move for legislation similar to New Hampshire’s, thereby forcing similar arrangements in their own jurisdictions. This leaves the door open for prosecution under the Racketeer Influenced and Corrupt Organizations Act (RICO), which on occasion has been used to prosecute wayward corporations. Finally, with the exchange of clergy who were either alleged or known pedophiles across state lines, a federal case can be made for conspiracy on the part of the American bishops who knowingly endangered the welfare of minors.

Government surveillance of Church files comes precariously close to excessive entanglement and a breach of the Establishment Clause.